HKSAR v. CYL

CACC 113/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 113 OF 2015

(ON APPEAL FROM HCCC NO. 505 OF 2014)

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REASONS FOR JUDGMENT
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Hon Yuen JA (giving the reasons for judgment of the Court):

1. On 26 May 2014 the Appellant was arrested and subsequently charged with one count of incest with his daughter X (“the daughter/the victim”) on 21 October 2013. He pleaded guilty before a magistrate.

2. On 11 February 2015 he appeared before Toh J for sentence.  The learned judge called for a victim impact report. 

3. On 2 March 2015 Ms ST Wu, a clinical psychologist, conducted an assessment of the daughter’s psychological state, and a report was submitted to the court on 12 March 2015.  The contents were not challenged by the Appellant, who was legally represented. 

4. On 20 March 2015, after considering the report and mitigation advanced by the Appellant’s counsel, the judge sentenced him to a term of imprisonment of 6 years and 8 months.  He appealed against sentence with leave of the court granted on 19 August 2015.

5. At the conclusion of the hearing, we dismissed the appeal and indicated that reasons would be given in writing later.  These are our reasons. 

Background

6. The Appellant was born in 1960 (making him 53 years of age at the time of the offence).  He came to Hong Kong when he was about 13.  From his first relationship, he has a son who is now in his 30’s. 

7. In 1995 (when the Appellant was 35 years old) he married a woman from the Mainland, who gave birth to a daughter the following year.  Subsequently his wife and daughter came to live with him in Hong Kong.  The daughter was said to have been smart and cheerful when she was in primary school.

8. However things changed after a couple of years. The daughter suspected she was being molested by the Appellant while she was sleeping.  When she woke up, she would find her clothes undone or her underpants removed.  For a number of years, she was “under [a] heavy sense of horror, worry and hopelessness”.  She did not wear loose clothes when she went to sleep and tried to keep awake at night but that did not help.  She did not tell her mother about the molestation as the Appellant told her that if she did, the mother would abandon her.

9. In 2012 (when the Appellant was 52 and the daughter 16), the Appellant and his wife divorced.  The wife left the matrimonial home.  The daughter carried on living at home with the Appellant.

10. The following year, the act the subject-matter of the charge was committed.  The daughter became pregnant.  When she became aware of the pregnancy a few months later, she became “intensely fearful and angry” with the Appellant because previously she had thought he had only touched her private parts. 

11. When the Appellant became aware that the daughter was pregnant, he suggested she have an abortion on the mainland, but he did not take any further steps to assist her in obtaining a termination of the pregnancy.

12. The mother discovered the pregnancy when the daughter was some 7 months into term.  The baby was delivered and given up for adoption.

13. At first the Appellant denied that he had committed incest.  In his video recorded interview with the police, he challenged whether the daughter was his child, but he pleaded guilty when DNA results proved that she was his daughter and the baby she delivered was his.

14. After considering the victim impact report and mitigation, the judge adopted a starting point of 8½ years imprisonment, increased it to 10 years for aggravating factors, and gave a discount of 1/3 for the guilty plea, resulting in a sentence of 6 years and 8 months. 

Grounds of appeal

15. The two grounds of appeal are that: (1) the overall starting point of 10 years adopted by the judge was manifestly excessive; and (2) insufficient weight had been attached to the mitigating factors advanced on his behalf.

Discussion

16. In respect of the first ground, counsel for the Appellant accepts there is no sentencing guideline but has provided the court with a number of cases for reference.  There is also a table provided with her written submission.

17. We should however first note that the current maximum penalty for this offence was fixed in May 1998, and so cases prior to that date are of little assistance as far as the sentences passed are concerned.  Some other cases also have additional features.  In our view the following cases (in chronological order) are more relevant to our present case.  For the sake of brevity, we have only set out the starting points for the sentence for incest.

Case	Brief Facts	Sentence starting point
Li Kin Ho CACC409/1998 (1999)	1 count incest. Victim 21 yo.	5 yrs.
FLH CACC426/2000 (2001)	4 counts incest. Victim 12 yo.  Became pregnant, baby given away.	12 yrs.
Chan Hang Yuk CACC366/2005 (2007)	1 count incest. Victim 13 yo. Child abuse for past 6 yrs.	10 yrs.
Lam Chung Tak CACC271/2006 (2007)	2 counts incest, 1 count indecent assault. Victim 10-11 yo.	9 yrs for incest.
Ting Kan Ngai HCCC24/2009 (2009)	2 counts incest, 3 counts indecent assault. Victim 11-12 yo.	9 yrs for incest.
Wong Shih Kao HCCC167/2010 (2010)	3 counts incest, 1 count indecent assault. Victim 13 yo.	6 yrs for incest.
Ma Kwun Ho HCCC201/2011 (2011)	1 count of incest. Victim 15 yo.	7 yrs.
LWH HCCC207/2011 (2011)	4 counts incest. Victim 11 yo.	9 yrs.
Lai XX CACC481/2011 (2012)	1 count incest, 1 count indecent assault. Victim 12 yo.	9 yrs for incest.
Lui Yick Keung HCCC255/2012 (2013)	4 counts incest. Victim 17 yo.  Sex for reward.	4½ yrs.

18. It will be seen from the above that, as expected, the sentences differ according to the facts of each case, such as the age of the victim and the circumstances and consequences of the offence.

19. In the present case, the victim was 17 years of age at the time of the offence and it has not been alleged that violence was used.  On the face of it, it may be said that this case is therefore not as serious as cases involving younger victims or violence.  At the same time however, it must be remembered that (as in Chan Hang Yuk) thisgirl had been subjected to a history of interference by the Appellant, resulting in her suffering from “[a] heavy sense of horror, worry and hopelessness” for many years prior to the incident.  The mother confirmed that the daughter had been depressed and socially withdrawn for some time.  After her mother left the matrimonial home after the divorce, the feeling of hopelessness would only have increased. Therefore even though this girl was 17 and no violence had been used, it is important to bear in mind that the Appellant had subjected her to interference of a sexual nature since a young age, and it would not be correct to say that this case is less serious because of her age and lack of violence in the commission of the offence.

20. Moreover the consequences of the offence were extremely serious.  After the victim discovered she was pregnant, she “harboured intense fear, worry and anger”.  During this period, the Appellant took no steps to help her cope with the problem.  It was only after she had carried the baby for 7 months that her mother discovered the pregnancy and took steps to support her progress towards birth and giving the baby up for adoption.  Not surprisingly, the victim had no feelings towards the baby at all. 

21. Further the victim impact report shows that 1½ years after the offence and 9 months after delivering the baby, she was still showing signs of post-traumatic stress disorder.  Although the psychologist reported that she sought to cope with negative emotions by adopting “avoidance and suppression coping strategies”, she nevertheless had burst into tears at the assessment and showed “intense hatred” towards the Appellant, expressing her “deep feelings of sorrow, worry and anger”. 

22. Although counsel for the Appellant emphasized that according to the report, the victim has not shown signs of significant emotional or behavioural problems, the psychologist reported that that may be because she has adopted “coping strategies”.  But even if it is assumed (in favour of the Appellant) that the absence of such signs is not due to the victim’s own “coping strategies”, the psychologist (applying her professional expertise) was nevertheless sufficiently concerned for the victim’s psychological well-being to recommend psychological intervention.  Unfortunately the victim expressed her “strong reluctance” to receive follow-up and the court was told that this remains the case.   

23. Moreover, it is clear from the victim impact report that as a result of the offence, the victim has “markedly diminished” trust towards men and, even though she is now 19, has no interest in developing a normal heterosexual relationship.  Although counsel for the Appellant has suggested that the victim may, in any event, not have been interested in developing a heterosexual relationship at her present age, an inability to trust men in general (unless treated) would obviously affect her detrimentally as she goes about her everyday life, whether it be dealing with fellow students, teachers or co-workers in the future. 

24. It has been said that as incest strikes at the very fabric of family life, sentences are required to both punish and deter.  The aggravating features in this case are this young girl’s suffering at the hands of her own father over the years, the pregnancy, the fact that she was left to face it alone for 7 months, the delivery of an unwanted child, post-traumatic stress disorder and the psychological effect on her present and future life.

25. In our view these aggravating features justified the judge’s adoption of a higher overall starting point of 10 years and it cannot be said that the sentence was manifestly excessive.

26. As for the second ground of appeal, the Appellant had, prior to his arrest, been caring for his elderly mother and mentally retarded sister.  Unfortunately, after the Appellant was taken into custody, the sister killed herself.  The mother is now being cared for in a home.  The judge was aware of these events but gave no further reduction as she considered that this was a result of the Appellant’s own actions.

27. Counsel for the Appellant said that whilst he should have expected that the sister might have to be institutionalized if he could not look after her, he could not have anticipated that she would have taken her own life.  That may be so, but he must have foreseen that his arrest would leave her in a desperate state.  Further the Appellant can hardly say he valued the well-being of his family when he has chosen to do what he did to his own daughter.  His arrest and imprisonment and the sister’s suicide must have been a severe blow to his mother, but she is being cared for, and it should not lead to a reduction of sentence for him.